RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 October 2005
      DOCKET NUMBER:   AR20050012657


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Lisa O. Guion                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ) be transferred from the performance
(P-Fiche) portion to the restricted (R-Fiche) portion of his Official
Military Personnel File (OMPF).

2.  The applicant states, in effect, that he previously submitted a request
to transfer the Article 15 in question to the R-Fiche to the Department of
the Army Suitability and Evaluation Board (DASEB).  However, this request
was denied.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army and entered active duty on
8 August 1989.  He was trained in and awarded military occupational
specialty (MOS) 95B (Military Police).

2.  The applicant’s record shows that on 26 February 2003, while he was
serving as a recruiter in Denver, Colorado, the applicant accepted
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) for violating Articles 92 and 134
of the UCMJ.

3.  The DA Form 2627 on file in the applicant’s OMPF shows he accepted the
Article 15 in question on 26 February 2003, while serving in the rank of
staff sergeant/E-6 (SSG/E-6), for the following offenses:  requesting oral
sex from a proposed recruit in exchange for favoritism at the Military
Entrance Processing Station (MEPS) on or about 30 May 2002; by making
inappropriate comments to a proposed recruit on or about 7 February 2002
and 28 February 2002; for willfully and wrongfully exposing his private
part in an indecent manner on or about 30 May 2002; by making inappropriate
comments to a second proposed recruit on or about 1 August 2002 and
20 August 2002; for orally communicating indecent language on or about
1 August 2002 and 15 August 2002;  by making inappropriate comments to a
third proposed recruit on or about 20 February 2002; and for pursuing a
sexual relationship with a woman not his wife on or about 7 February 2002.
His punishment for these offenses included a reduction to sergeant/E-5
(SGT/E-5) and a forfeiture of $1,142.00 per month for 2 months (suspended).


5.  On 5 March 2003, the applicant’s brigade commander, the commander who
imposed the NJP, directed the DA Form 2627 be filed in the P-Fiche of the
applicant’s OMPF, and the applicant appealed the NJP action and submitted
additional matters.

6.  On 5 March 2003, a Judge Advocate General (JAG) officer considered the
applicant’s appeal and opined that the proceedings were conducted in
accordance with law and regulation and the punishments imposed were not
unjust nor disproportionate to the offenses committed.

7.  On 31 March 2003, the appellate authority, the United States Army
Recruiting Command (USAREC) commander, denied the applicant’s appeal.

8.  On 7 February 2005, the applicant submitted a request to the DASEB
requesting that the DA Form 2627 in question be transferred from the P-
Fiche to the R-Fiche of his OMPF.  The DASEB summary on file indicates the
applicant's appeal did not provide sufficient proof to show that the filing
of the Article 15 in the P-Fiche had served its intended purpose, or that
it was in the best interest of the Army to transfer the derogatory document
to the R-Fiche.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ, and Part V, MCM.  Paragraph
3-37b states, in pertinent part, that for Soldiers in the ranks of sergeant
(SGT) and above, the original record of NJP will be sent to the appropriate
custodian for filing in the OMPF.  The decision to file the original DA
Form 2627 on the P-Fiche or R-Fiche of the OMPF will be determined by the
imposing commander at the time punishment is imposed.  The filing decision
of the imposing commander is subject to review by any superior authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer the DA Form 2627 to the R-Fiche
portion of his OMPF was carefully considered.  However, the evidence of
record confirms that the disposition and filing of the record of NJP he
accepted on 26 February 2003, while he was serving in the rank of SSG, was
accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the NJP process.

2.  The evidence of record confirms that the DASEB, the designated board,
found the applicant’s appeal provided insufficient evidence to show the
Article 15 in question had served its intended purpose, or that it was in
the best interest of the Army to transfer the derogatory document to the R-
Fiche.
3.  By regulation, the filing determination of the commander who imposed
the NJP is subject to review by any superior authority.  However, the
applicant has failed to provide any documentary evidence to support his
application to this Board.  Therefore, given the seriousness of the
offenses committed, and lacking any evidence that would indicate the NJP
was unjust, there is an insufficient evidentiary basis to support granting
the requested relief in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___ALB _  __LDS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____Melvin H. Meyer_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050012657                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/10/27                              |
|TYPE OF DISCHARGE       |NA                                      |
|DATE OF DISCHARGE       |ACTIVE DUTY                             |
|DISCHARGE AUTHORITY     |NA                                      |
|DISCHARGE REASON        |NA                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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